|1. FEATURE ARTICLE: IMMIGRATION BENEFITS FOR SAME-SEX AND DOMESTIC PARTNERS: A COUNTRY-BY-COUNTRY OVERVIEW - This article provides an overview of immigration benefits for same-sex and/or domestic partners in various countries.|
|2. AUSTRALIA - In June 2013, the previous government of Australia decided to undo decades of progressive reform and introduce Labour Market Testing (LMT) into the 457 program. That government was defeated in September 2013 and the new government has substantially watered down the LMT regime with amendments passed on November 23.|
|3. BRAZIL - Brazil is now accepting work authorization applications through its new digital certificate system. Also, the country has released information for those coming for the FIFA World Cup 2014, which will be held in Brazil from June 12 to July 13, 2014.|
|4. EUROPEAN UNION AND SCHENGEN REGULATIONS - The definition of "short stay" in the Schengen area has changed.|
|5. NETHERLANDS - Laws and regulations relevant to business immigration were amended on a wide scale on January 1, 2014.|
|6. TURKEY - Turkey's Ministry of Foreign Affairs has announced that as of April 10, 2014, the visitor visa-on-arrival system will no longer be available.|
|7. UNITED KINGDOM - Various developments have been announced.|
|8. New Publications and Items of Interest - New Publications and Items of Interest|
|9. Member News - Member News|
|1. FEATURE ARTICLE: IMMIGRATION BENEFITS FOR SAME-SEX AND DOMESTIC PARTNERS: A COUNTRY-BY-COUNTRY OVERVIEW|
Below is a summary of the Belgian situation for partners of third country (non-European Union/European Economic Area) business migrants:
- Belgium recognizes same-sex relations and marriages. The rules with regard to family reunification for domestic (common-law) partners and spouses apply to same-sex partners and spouses.
- A spouse can join a third country business migrant if the spouses live together in Belgium, provided that both partners are older than 21 years or, if they were already married before the arrival of the business migrant in Belgium, older than 18 years.
The same principles apply to a domestic partner on the basis of a registered partnership that is considered equivalent to a Belgian marriage: only registered partnerships from Denmark, Finland, Germany, Iceland, Norway, Sweden, and the United Kingdom qualify.
Domestic partners without a registered partnership, or with a registered partnership that is not considered equivalent to a Belgian marriage, can also invoke the right to family reunification provided they are not involved in another marriage or partnership. The partners, who must sign a registered partnership in Belgium, must have a long-lasting and stable relationship. The existence of such a relationship can be proven by either prior legal cohabitation (at least 1 uninterrupted year, in Belgium or abroad), or evidence of a relationship (the partners prove that they have known one another for at least 2 years, they have had frequent contact (by phone, mail, or e-mail), they have met at least 3 times over the last 2 years, and these meetings covered at least 45 days in total), or a common child. The partners must be older than 21 years or, if they have already cohabited at least 1 year before the arrival of the business migrant in Belgium, older than 18 years.
Some changes are expected to be implemented soon concerning the processing of visas for common-law partners. For the time being, the norms that apply are those provided for in Normative Resolution No. 77.
Normative Resolution No. 77, issued by the Brazilian National Council of Immigration on January 29, 2008, established the criteria for the granting of temporary or permanent visas to partners, in a common-law marriage without sex discrimination, of a Brazilian citizen or of a foreign national bearing a temporary or a permanent visa to live in Brazil.
If there is a certificate of common-law marriage issued by a governmental entity, no other document is required to prove the existence of the common-law marriage.
If not, the common-law marriage may be proven through other documents: (i) a public deed issued by a Notary Public; (ii) declaration, under the penalties of law, of two witnesses who can prove the existence of the common-law marriage; (iii) at least two of the following documents: (a) evidence of dependence issued by a tax authority; (b) certificate of religious marriage; (c) testamentary provision that may prove the existing relationship; (d) life insurance policy in which one of the partners is the establisher of the insurance and the other is a beneficiary; (e) deed of purchase and sale registered in the appropriate Property Ownership Registration Office, showing both partners as owners; or a rental property contract in which both partners appear as lessees; or (f) joint bank account, it being noted that documents (b) to (f) must show that they have been in place for at least one year.
In addition to the proof of the existence of the common-law marriage, the summoning partner must, among other documents, submit a public deed prepared at a Notary Public of a commitment to support the foreign national and assure his or her departure at the end of the validity of the visa. FULL LIST OF DOCUMENTS
The application for this type of visa must be submitted to the Brazilian Council of Immigration, which meets once per month except in January and December. SCHEDULE OF MEETINGS FOR 2014
Immigration Benefits for Same-Sex Partners
Since the entry into force of Canada's Immigration and Refugee Protection Act (IRPA) in 2002, replacing the Immigration Act, 1976, same-sex rights have become enshrined in Canadian immigration law.
With the IRPA, the family class permanent immigration category was expanded to include same-sex couples. Gay and lesbian Canadian citizens and permanent residents may sponsor their spouses, common-law partners, and conjugal partners, as applicable. The new references in Canadian immigration law in 2002 to "common-law partners" and "conjugal partners" pursuant to subsection 1(1) of the Immigration and Refugee Protection Regulations encompass both opposite-sex and same-sex couples. Same-sex marriages are recognized for Canadian immigration purposes in any jurisdiction where they are currently legal. An applicant for economic class immigration can include his or her same-sex spouse or common-law partner as a dependent in his or her application.
In addition, same-sex rights are recognized with respect to temporary immigration status in the according of spousal work permits. The spouse or common-law partner of the holder of a Canadian work permit or study permit may apply for an open work permit irrespective of whether they are in a same-sex or opposite-sex relationship, subject to certain conditions.
Immigration Benefits for Domestic Partners
In Canadian immigration law, domestic partners are known as "common-law partners." A "common-law partner" is defined in subsection 1(1) of the Immigration and Refugee Protection Regulations as an individual cohabiting with a person in a conjugal relationship for at least one year. For Canadian immigration purposes, common-law relationships are considered to be marriage-like relationships characterized by mutual commitment, exclusivity, and interdependence.
Common-law relationships must be factually demonstrated to Citizenship and Immigration Canada (CIC) based on documents proving cohabitation for a continuous period of at least one year and documents proving interdependence, such as documentation regarding joint ownership of property, joint travel, or photographs of the couple. Conjugal partners are recognized as common-law partners in Canadian immigration law where, due to very exceptional circumstances such as persecution, they have been precluded from cohabiting together for a period of at least one year.
As with married spouses, common-law partners may sponsor their common-law partners and include their common-law partners as dependents on other permanent immigration applications. Similarly, common-law partners are eligible for open spousal work permits subject to certain conditions, provided that they submit sufficient evidence to substantiate their common-law relationship. Common-law partners enjoy equal rights as married spouses pursuant to Canadian immigration law but are subject to a higher evidentiary burden in terms of proving their relationship to CIC.
China does not recognize either same-sex or domestic partners. To bring in a spouse as a dependent, there must be a valid marriage license, unless both partners are of the same gender, in which case China will not recognize the relationship. There is currently no way around these requirements under China's immigration laws.
General provisions relating to marriage from the law of May 17, 2013, conflict of laws, and consular marriage. France's Civil Code now recognizes marriage between persons of the opposite or the same sex. Article 202-1 of the Civil Code provides that the conditions for marriage are governed by the personal law of each spouse, but then Article 202-2 provides that two persons of the same sex can marry when the personal law or the law of the state of residence of one spouse permits. This arrangement allows avoidance of the application of the personal law of one spouse prohibiting marriage between persons of the same sex when the marriage took place in the territory of a state recognizing marriage between persons of the same sex.
The above implies, for the Constitutional Council, that two foreigners of the same sex can marry when one of them resides or is domiciled in France. However, this rule does not apply to nationals of countries with which France is bound by bilateral agreements (Poland, Algeria, Tunisia, Morocco, republics of the former Yugoslavia, Cambodia, and Laos), which provide that the law governing conditions for marriage is the personal law. The marriage, however, may take place in a non-prohibitive state having no bilateral agreement with the country of the spouses.
Foreign nationals frequently may find themselves in situations where their marriages in France are not recognized by their countries of origin unless such countries have adopted legislation similar to the new French legislation.
A consular marriage between same-sex French nationals does not raise issues. However, a consular marriage between a French and a foreign national may be more complex in consular posts in prohibiting countries (which are in the majority). In such case, the Civil Code provides that the marriage may take place in France.
The law of May 17, 2013, also provides that marriages between same-sex couples may be recognized retroactively if they were validly celebrated abroad at a time when French law forbade such marriages.
The impact on French immigration rights of foreign nationals moving to France. Marriage now carries the same effects, rights and obligations whether between persons of different sex or the same sex.
- Derivative residency and work rights known as "accompanying family rights" are applicable to married foreign workers under Inter-Company Transfer, EU Blue Card, or Skills and Talents status, regardless of the gender identity of the spouses when the marriage is celebrated in France or recognized by France (marriage between two foreigners) on the basis of the new provisions of the Civil Code and Article L313-11-3 CESEDA.
- The same sex marriage between foreign national and French national is will allow the issuance of visa and residence permit to the foreign national as the spouse of French national, on the basis of the Civil Code and Article L313-11-4 CESEDA.
- The marriage between of a third country foreign national in European Union with a European citizen is expected to allow the issuance of a residence permit as a European spouse under Articles L121-3 to L121 -5 CESEDA.
Recognition of marriage for same-sex couples could also give rise to new legal actions when a decision refusing stay maybe considered as disproportionate interference with rights to private and family life, under Article 8 of the European Convention on Human Rights.
Domestic partners however will not enjoy the same immigration rights as same-sex married couples. Even domestic partners who contract the French form of domestic partnership agreement (PACS) will not qualify for "accompanying family rights".
Hong Kong S.A.R.
Hong Kong does not recognize same-sex and unmarried domestic partners' relationships for immigration purposes. Accordingly, such a partner of a person holding permanent resident status or an employment visa cannot be granted dependent status. However, the Hong Kong Immigration Department does have a policy of exercising discretion for those living in a relationship akin to marriage and will grant an extended visitor’s visa to the partner of a person who is granted an employment visa. The person seeking such status must demonstrate he/she has the financial means to support himself/herself or that the partner can support and provide accommodation to him/her and the bona fides of the relationship as documented by extensive documentation of a pre-existing relationship of some time .The holder of this extended visitor’s visa cannot work so in practice, very few applications are lodged for extended visitor status.
The question of immigration benefits for same-sex couples remains unresolved in India. India not only disallows same-sex marriages but also criminalizes relationships between same-sex partners, terming them unnatural. Section 377 of the Indian Penal Code (IPC), an archaic law, was introduced in 1861 during British rule in India. It criminalized "carnal intercourse against the order of nature with any man, woman or animal" with a maximum sentence of life imprisonment.
The struggle to strike down section 377 of the IPC as unconstitutional has been a long one, spearheaded by activists from non-governmental organizations (NGOs) fighting for the rights of the lesbian, gay, bisexual, and transgender (LGBT) community. On July 2, 2009, a historic judgment decriminalizing homosexuality was passed by the Delhi High Court in favor of Naz Foundation, an NGO working in the fields of HIV/AIDS intervention and prevention and for the rights of the LGBT community. An appeal was filed challenging this decision in the Supreme Court of India. On December 11, 2013, the Supreme Court reversed the decision of the Delhi High Court, thereby criminalizing homosexual intercourse between consenting adults. The Supreme Court shifted the onus onto Parliament to decide whether to repeal the provision, arguing that the courts could not make such decisions under the existing laws. The Supreme Court further observed that there was "no constitutional infirmity" in the section 377 law. This judgment has sparked widespread condemnation throughout India and internationally, and has been criticized as regressive.
Because Indian law does not recognize same-sex marriages, there are no provisions in Indian law according immigration benefits to same-sex partners. It is therefore not possible to qualify for an entry visa to accompany one's partner who may be entering India on a long-term employment visa. At the most, the partner can come to India on a tourist visa (for a maximum period of 180 days).
However, there have been isolated incidents and trends worth reporting. In November 2013, a senior Indian Foreign Service officer was demoted from her post in the Ministry of External Affairs (MEA) passport and visa division for refusing a visa for the same-sex spouse of a U.S. diplomat. She refused the visa on the ground that same-sex marriages are not legal in India and the diplomat's spouse could not therefore be granted a diplomatic visa and recognized as a "spouse" in India. A senior official in the MEA's American division suggested that although there is no rule in India allowing visas for gay couples, the diplomat's partner could be given a visa as a family member as it had been done in the past. On the other hand, in light of India's opposition to the arrest of its Deputy Consul General in New York, one politician from the Bhartiya Janata Party has shrilly suggested that the same-sex partners of U.S. diplomats be prosecuted under section 377 as a retaliatory measure.
Until recently, Indian law did not recognize relationships between domestic, live-in (opposite-sex) partners. On June 17, 2013, the Madras High Court held that for a valid marriage, all customary rights need not be followed and subsequently solemnized. As long as the couple is not disqualified by law from marrying each other, and a third party's rights are not affected, the couple can be declared to be spouses by the court. This declaration would be on the basis of whether they have had a sexual relationship. The court held that if a woman age 18 and above, and a man age 21 and above, have a sexual relationship, they will be treated as husband and wife, especially if the woman becomes pregnant. Even if the woman does not become pregnant, if there is "strong documentary evidence to show existence of such relationship," they will still be termed "husband" and "wife." However, this ruling only applies to the state of Tamil Nadu and cannot be enforced elsewhere in India.
In a recent judgment of November 26, 2013, the Supreme Court of India dealt with the issue of live-in relationships, but that was within the purview of the Domestic Violence Act 2005 (DV Act, 2005). The Supreme Court held that a "live-in relationship" would not amount to a "relationship in the nature of marriage" falling within the definition of "domestic relationship" under Section 2(f) of the DV Act, 2005 if the woman in such a relationship knew that her male partner was already married. All live-in relationships are not relationships in the nature of marriage, but they can still come within the ambit of the DV Act, 2005. The judgment was delivered by a Division Bench of Justices KS Radhakrishnan and Pinaki Chandra Ghose in an appeal filed by Indra Sarma (Appellant) against the decision of the Karnataka High Court. This ruling only applies to domestic partners of the opposite sex, not to same-sex partners, in view of the recent decision of the Supreme Court in the Suresh Kumar Koushal case.
As these issues are very recent and path-breaking in Indian law, there has been no recognition thus far of same-sex partners or domestic/unmarried partners with respect to Indian immigration. The Indian government filed a review petition in the Supreme Court on December 20, 2013, challenging the earlier judgment upholding section 377, stating, "Section 377 IPC, insofar as it criminalizes consensual sexual acts in private, falls [afoul] of the principles of equality and liberty enshrined in our Constitution." Following the government’s review petition, Naz Foundation also filed a review petition in the Supreme Court challenging its decision. On January 28, 2014, however, the Supreme Court dismissed the petitions seeking review.
Italian immigration offices are now increasingly approving family permit of stay applications of non-European Union (EU) nationals married to same-sex EU nationals. These permits are valid for five years and lead to permanent settlement, but can only be obtained as long as the marriage took place in a country accepting same-sex marriages.
Domestic partnerships are not recognized by Italian law and the immigration system does not provide any option for them.
Japan does not recognize same-sex marriages or domestic partners for the purpose of conferring immigration benefits. The same-sex spouse/partner can try to apply for a dependent visa and the case will be referred to the Ministry of Foreign Affairs in Japan, which can grant the visa, but the chances of a visa being approved on that basis is extremely low.
On December 21, 2009, the legislative assembly in Mexico City approved marriage between same-sex partners and their right to adopt children. It was the first city in Mexico and in Latin America to approve marriage between same-sex partners. These reforms in the capital's civil law have spread to other entities in Mexico. From an immigration standpoint, the new Migration Act of November 2012 upholds the human rights of immigrants and establishes regulations for domestic and same-sex partners to obtain Mexican visas on the basis of bonds with Mexicans or foreign residents in Mexico.
Any same-sex or domestic partner who wishes to apply for a visa can do so with almost the same requirements as a married straight couple. The most difficult challenge is to obtain proof of partnership in the country of origin.
In the Netherlands, there is no legal difference between a same-sex marriage and an opposite-sex marriage. The rules with regard to family reunification between people from the same sex and opposite sex are similar too.
Partners of the same sex or opposite sex fulfill the criteria for family reunification if they both prove, by official (and legalized) documents, that they are unmarried. In addition, they must prove that they have a long-lasting and stable relationship. This means that the relationship has to be comparable to a marriage. To prove the existence of such a relationship, the partners must complete and sign two forms, the so-called relationship statement and a questionnaire that asks questions like how they met, how long they have been in the relationship, and whether their family members have been informed about their relationship. The legislation does not define a minimum period of time the relationship must have existed.
For marriages and registered partnerships, the criteria for family reunification are similar. Married couples or registered partners have to prove their marriage or registered partnership with official (and legalized) documents.
In addition to the above criteria for registered partners and spouses, the minimum age to apply for family reunification is 21 years, and the person who applies for reunification with his or her partner or spouse must earn at least the minimum wage.
In Peru, relationships between domestic partners and same-sex partners are not recognized for immigration purposes. Only marriage according to Peruvian civil law and related regulations is recognized for purposes of obtaining a resident visa through a family-based proceeding.
Russia does not recognize same-sex marriage. This means that for visa purposes, same-sex and unmarried partners are not treated as dependents.
South African immigration law gives effect to the requirement of its Constitution that a person may not be discriminated against on the basis of his or her sexual orientation. That protection applies whether the person is a foreign national or a South African citizen.
The term "spouse," for purposes of South African immigration law, describes a person who is in a spousal relationship, be he or she in a marriage, a civil union, or an informal life partnership. Legislation does require, however, that any previous marriage or civil union must have been lawfully terminated. The relationship must be monogamous.
The foreign spouse of a South African citizen is eligible to apply to the Department of Home Affairs for a temporary residence permit to accompany his or her South African spouse in South Africa. These "relative's permits" are usually issued for about two years at a time. A relative's permit may be extended (from within the country), upon application, so long as the relationship still exists. Once the spousal relationship is five years old, the foreign spouse may apply for permanent residence on the basis of the relationship.
If the foreign spouse has obtained an offer of employment, he or she may apply to have the permit amended to allow him or her to take up that employment.
When a foreign national is moving to South Africa for some lawful purpose, he or she may bring a partner regardless of the couple's sexual orientation. The "accompanying spouse" must (principally) prove that the spousal relationship exists. Unfortunately, the "dispensation" allowing a foreign spouse to take up employment in South Africa applies only to the spouses of South African citizens.
Same-sex or opposite-sex partners who are not legally married, whether or not they are in a legally recognized domestic partnership, may qualify for a B-2 visitor's visa to accompany a nonimmigrant partner, provided they can demonstrate the normally required intent not to immigrate or overstay in the United States. The primary purpose of coming to the United States must be to accompany the "significant other" who has already demonstrated nonimmigrant intent in obtaining his or her own visa, whether it be as a visitor, student, temporary worker, or other nonimmigrant classification. In making the assessment, U.S. immigration authorities will consider the current circumstances and prospects in the home country upon return, as well as the strength of his or her relationship with the "principal" alien and the principal's own ties abroad.
The principal applicant may be exempt from having to document nonimmigrant intent under an H or L visa or from having to document a residence abroad under an A, E, G, I, O, or R visa classification. The accompanying B-2 visitor partner, however, must show nonimmigrant intent and a residence abroad, whether it be his or her own address or that of a relative or friend. Partners are not eligible for benefits as an immigrant unless they are in a marital relationship that is valid under the laws of the jurisdiction where the marriage was performed. This is recognized even if the marriage is not recognized in their place of residence. A domestic partnership does not confer any benefits as an immigrant.
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In June 2013, the previous government of Australia decided to undo decades of progressive reform and introduce Labour Market Testing (LMT) into the 457 program. That government was defeated in September 2013 and the new government has substantially watered down the LMT regime with amendments passed on November 23.
The subclass 457 visa is the most commonly used visa to sponsor overseas skilled workers on a temporary basis to work in Australia. Subclass 457 is uncapped and driven by employer demand. This generally means that employers will sponsor overseas workers more in times of high economic growth and low unemployment.
An application for approval of sponsorship must be accompanied by evidence in relation to LMT, unless the employer is exempt from doing so. Legislation specifies the manner in which such testing is to be carried out as well as the period in which LMT must have been undertaken. It also sets requirements relating to the sponsor's attempts to recruit local labor. However, the November amendments provide for substantial exemptions from the LMT requirements.
The first such exemption provides that LMT is not required if it would be inconsistent with Australia's international trade obligations, which fall into two categories:
- World Trade Organization General Agreement on Trade in Services (WTO-GATS) commitments
- Free trade agreement commitments
Consequently, sponsorship of citizens from WTO member countries would not require LMT. Similarly, intra-company transferees to Australia from a business established in a WTO country are exempt from LMT.
In addition to exemptions based on international trade agreements, sponsorship of executives and senior managers are exempt, as are specialists with two years of employment in Australia. Sponsors are also exempt from LMT for employees in positions that require tertiary qualifications. However, certain occupations cannot be exempted. The current list of occupations in that category includes a range of highly qualified engineers and nurses.
Finally, a sponsor may be exempt from LMT in the case of major disaster in Australia.
FACT SHEET ON THE 457 VISA
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Brazil is now accepting work authorization applications through its new digital certificate system. Also, the country has released information for those coming for the FIFA World Cup 2014, which will be held in Brazil from June 12 to July 13, 2014.
Since December 16, 2013, work authorization applications can be processed through the new digital certificate system. However, as it is still in the testing phase, some difficulties may arise. The good news is that processing and approval is much faster than the regular process.
FIFA World Cup 2014
Everyone coming for the World Cup should apply for a visa under RN-98, a normative resolution providing that visas for the World Cup event will be analyzed and granted on a priority basis. However, even under RN-98, there are a variety of visa categories, depending on what the person will be doing:
- volunteers will receive temporary special courtesy visas;
- spectators with purchased tickets will receive temporary special tourist visas;
- members of the press covering the FIFA World Cup will receive temporary special business visas;
- athletes and artists will receive temporary special Item III visas;
- professionals working for the FIFA World Cup 2014 organization will receive temporary special item V visas; and
- international correspondents covering the FIFA World Cup 2014 will receive temporary special item VI visas.
Brazil has visa waiver agreements with certain countries. For applicants needing a Temporary Special Tourist Visa or a Temporary Special Business Visa, see the visa chart to verify whether you need a visa to go to Brazil. Brazil has long-validity tourist visa agreements with Canada (5 years) and the United States (10 years).
Applicants who intend to travel to Brazil several times in the future may apply for a Temporary Special Tourist Visa at no charge and valid for 90 days, or may apply for a regular tourist visa with payment of fees for a longer term.
FIFA WORLD CUP WEBSITE
INFORMATION ON TEMPORARY SPECIAL VISAS
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|4. EUROPEAN UNION AND SCHENGEN REGULATIONS|
The definition of "short stay" in the Schengen area has changed.
A new definition of "short stay" for non-EU citizens in the Schengen area applies as of October 18, 2013. A short stay is now up to 90 days per 180-day period, instead of 3 months within a period of 6 months. More importantly, a new method of calculation of short stay was introduced. The period of a maximum 3 months used to be counted from the date of first entry. Under the new definition, upon every entry the 180-day period preceding that new entry will be considered "90 days in any 180-day period." This definition allows for less flexibility.
This change does not apply to the visa waiver agreements concluded between the EU and Antigua and Barbuda, the Bahamas, Barbados, Brazil, Saint Kitts and Nevis, Mauritius, or Seychelles. For this group, the old definition (3 months during a 6-month period following the date of first entry) continues to apply.
The European Commission has provided a short-stay calculator on its website. This tool helps to establish in a simple way the number of remaining days the foreign national can stay in the Schengen area after his or her entry. A user's guide contains information on the new rules and how to use the calculator, as well as practical examples.
USER GUIDE IN ENGLISH
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Laws and regulations relevant to business immigration were amended on a wide scale on January 1, 2014.
Most of the new changes improve options to deploy foreign staff in the Netherlands, such as the introduction of short-stay highly skilled migrant (HSM) permits. Some changes, however, are restrictive, such as the increase of the term for obtaining full labor market access (from 3 to 5 years). An incidental legislative fluke raised considerable concern over work permits for business meetings. That was temporarily mended. More about this below.
On January 1, 2014, the government, by mistake, drastically limited business travel. Due to a legislative error, the work permit exemption for business visitors was limited to a single business trip per year. Although the period during which the exemption applies was extended from 4 weeks (within a period of 13 weeks) to 13 weeks (within a period of 52 weeks), the word "uninterrupted" was added so that, effectively, only one trip per 52 weeks is allowed, whereas under the existing rule several trips per year were allowed. Given that business is generally not conducted in one trip, this amendment seemed to work out in practice as a limitation rather than an extension of the existing possibilities. Kroes Advocaten, together with several other parties, including the Amsterdam Expatcenter, lobbied for a quick solution. On January 10, the Ministry of Social Affairs confirmed that until further notice, the work permit exemption for business meetings remains as it was before January 1. This means that business meetings are allowed again for a period of up to 4 weeks, whether interrupted or not, within a period of 13 weeks. In the meantime, the Ministry is working on a more permanent solution.
Intra-Company Transferees: Salary Threshold for Trainees Introduced
Multinationals transferring trainees to their entities in the Netherlands must offer their trainees at least the gross annual salary of €38,145 (€3,205.44 per month) to receive a work permit. This regulation took effect January 1, 2014. Under the existing rules, the salary requirement was at "market level" without a specific threshold amount.
Highly Skilled Migrants: Work Permits for Short Stays
As a residence permit scheme, the HSM scheme did not until recently offer solutions for short stays (fewer than 90 days). A temporary pilot for short stays was launched in 2013 and was successful. It was introduced as a permanent option on January 1, 2014. The Labor Office issues a work permit for up to 3 months for work as a highly skilled migrant. In addition, employees from non-visa exempt countries must apply for a Schengen visa. As with the regular HSM scheme, the employer must have recognized sponsor status, and the HSM salary thresholds also apply; i.e., employees under the age of 30 must earn a gross monthly salary of at least €3,205.44, and employees of 30 years and above must earn €4,371.84.
New Work Permit Exemptions
Employees of multinationals transferred temporarily for the purpose of attending in-house company training in the Netherlands are, as of January 1, 2014, exempt from the work permit requirement. The maximum period for this work permit exemption is 12 uninterrupted weeks within a period of 36 weeks.
Revision of the Employment of Foreigners Act
The Employment of Foreigners Act was revised as of January 1, 2014. Work permits will only be issued for a maximum period of 1 year; previously it was 3 years. The Labor Office also no longer must assess whether registered job applicants are available and suitable for the vacancy. The Labor Office can simply refer to any job-seekers registered for the job function in the database to refuse a work permit application, regardless of whether these job-seekers are actually fit for the job or even interested. The Ministry of Social Affairs can also set a quota each year for the maximum number of work permits that can be issued for a specific sector.
Another change is that foreign workers who have held a residence permit for the purpose of working for 5 consecutive years will no longer face any labor market restriction. Under the previous law, the restriction could be lifted after 3 years of stay.
EU Nationals: Registration at Immigration Office No Longer Required
European Union (EU) nationals no longer need to register with the Immigration Service (IND) and obtain a sticker in their passport confirming their legal stay as an EU citizen. A valid passport or identity card is now sufficient proof of legal stay in the Netherlands. The new rule also applies to nationals of the European Economic Area and Switzerland.
Biometrics Introduced: Fingerprints
Residence permit applicants no longer must provide a passport photo and a signed photo form. Instead, they must visit an IND office where a digital passport photo is taken. In addition, fingerprints are taken, which were not required previously. These biometric data will be stored in a database of the IND pursuant to EU regulations. Applicants with a nationality requiring an entry clearance visa (MVV) must have their fingerprints taken by the relevant Dutch representative abroad, and provide a passport photo that will then be scanned on site, presumably with the exception of Dutch posts that have equipment to take digital passport photos.
Romanian and Bulgarian Nationals Enter the Dutch Labor Market
As of January 1, 2014, Bulgarian and Romanian nationals are free to enter the Dutch labor market. Employers no longer need a work permit for them. Bulgaria and Romania joined the EU in 2007, but pursuant to transition provisions the Dutch government was allowed to postpone the free movement of workers from these countries until January 1, 2014. On July 1, 2013, Croatia became the 28th member state of the European Union. Under comparable transition measures, the Dutch government has kept the work permit requirement in place for Croatian nationals.
Highly Skilled Migrants/EU Blue Card: New Salary Thresholds and Government Fees
The salary threshold for highly skilled migrants wishing to obtain an EU Blue Card residence permit in 2014 is €61,470 gross per annum.
The salary thresholds for highly skilled migrants (knowledge migrants) and EU Blue Card applicants have been slightly raised as of January 1, 2014. The HSM salary threshold now applies monthly and, in addition, the salary must be transferred monthly to a bank account in the name of the highly skilled migrant.
The government application fees for HSM and EU Blue Card applicants were raised as of January 1 to €861. The IND fee for renewals of these permits is now €360.
The link to the chart below shows the gross salary amounts that apply as of January 1, 2014.
|Download: Click here|
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Turkey's Ministry of Foreign Affairs has announced that as of April 10, 2014, the visitor visa-on-arrival system will no longer be available. The visa-on-arrival system allowed persons of certain nationalities to purchase their visitor visas in Turkey at the airport upon arrival. As of April 10, all nationals who had used this system must use the electronic visa system instead.
The move toward elimination of the visa-on-arrival is based on the new Law on Foreigners and International Protection (Law No. 6458). This law also mentions in Article 13 that as of the same date, border authorities in exceptional circumstances may issue a visa-on-arrival for up to 15 days. So it is not clear if the announcement of the elimination of the visa-on-arrival system means that this 15-day visa option will be eliminated as well, or will be extremely limited.
Also specified in the new law is a new special visa exemption for those tourists who arrive at sea ports of entry and whose tourist activities will not exceed three days.
In April 2014, many changes are expected in entry processing, residence permits, and visas.
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|7. UNITED KINGDOM|
Various developments have been announced.
Fees for Home Office Immigration & Nationality Services 2014/2015
On February 3, 2014, the Home Office announced proposals for fee changes for visas and immigration and nationality applications effective April 6, 2014. In addition, new fees for premium services overseas will be effective one week earlier.
The majority of fees will increase 4%. Significantly, the 25% discount applied to dependents' fees when submitting an application at the same time as the main applicant will be removed. This represents a considerable increase for employers sponsoring migrants with several dependents. The increase will make applications for indefinite leave to remain particularly costly; the new fee of £1,093 will apply to the main applicant and each dependent. Application fees for a family of 4 thus will total more than £4,000.
For Tier 2 applications, the fee rises a modest 4%, from £494 to £514 for overseas applications and from £578 to £601 for those made within the United Kingdom.
Of particular interest is the announcement that new rules will be introduced to enable Tier 2 applicants to apply for entry clearance or leave to remain for up to 5 years, but this comes with a hefty price tag: £1,028 for overseas applicants and £1,202 for those applying within the UK. The same fee also applies for each dependent. This will be a significant up-front cost for employers sponsoring long-term migrants, although it will remove the need to submit an extension application after 3 years, as is the case under the current arrangements.
The fee to submit an application in person at a Premium Service Centre (known as Public Enquiry Offices until April 1) will rise from £375 to £400, in addition to the standard application fee. The priority postal fee will rise from £275 to £300.
Under the Registered Traveller scheme for frequent business visitors, a yearly fee of £50 will be introduced following a successful pilot.
Outside the UK, the Home Office will expand the number of premium services, which are currently only available in a limited number of countries. The Home Office also is introducing a global fee for services that are currently charged at local rates. A fee of £100 for a 3- to 5-day priority visa service and a similar service for settlement applications will also be available, for a fee of £300. The availability of a super priority visa service will be expanded; for a fee of £600, the visa application will usually be decided within 24 hours.
The passport pass-back service will also be rolled out to more locations to enable applicants to hold onto their passports for most of the application process to facilitate travel. The fee for this will be £40 per applicant.
There are a number of fee reductions, notably in the fee for a Sponsor Licence application, to £1476. Also Tier 2 shortage occupations fees are reduced to £428 for both overseas applicants and in-country applicants.
The new fee schedule and additional information is available in Minister for Immigration Mark Harper's February 3 announcement.
Penalty for Illegal Working Doubles to £20,000 as Government Toughens Up on Employers
Beginning on April 6, 2014, the maximum civil penalty for employing unauthorized migrant workers will double from £10,000 to £20,000. This change was headlined in the Home Office consultation in 2013, in response to which 62% of employers agreed that the maximum penalty should be increased for those who repeatedly breach the law.
The new upper limit for civil penalties will apply to employers who breach the illegal working rules on more than one occasion. Under current law, all employers must undertake checks on each employee to satisfy themselves that the person is eligible to work in the UK.
In addition to these initial checks, employers must carry out a repeat document check at least once every 12 months for any employee whose leave to remain in the UK is limited in time. It is possible that this requirement could be removed and replaced by a check linked to the expiration of the employee's leave to remain, a change which 81% of employers responding to the consultation favored.
Annual Certificates of Sponsorship for April 6, 2014, to April 5, 2015
One of the first tasks sponsors must attend to is applying to renew their Certificates of Sponsorship (CoS). The Home Office is now emailing sponsors that they can apply for the next annual allocation of CoS for Tier 2. An email from the Home Office on this subject will be from a "no-reply" email address and therefore may arrive as spam or junk mail.
Because the current CoS allocation for each sponsoring organization will expire on April 5, 2014, sponsors should submit their requests as early as possible.
Working Restrictions Lifted for Bulgarian and Romanian Nationals
As of January 1, 2014, Bulgarian and Romanian nationals no longer require permission to work in the United Kingdom and now have full access to the UK labor market. Any such potential employees with a pending application for a work permit or Accession Worker Card can simply withdraw their applications and begin employment.
Purple Registration Certificate Required for Croatian Nationals
The work authorization process for Croatian nationals differs somewhat from the work authorization process in place for Bulgarian and Romanian nationals.
Croatian nationals must ensure that their employers are registered sponsors under the Points-Based System for Tier 2. The employer must issue a CoS to the applicant. Thereafter, the applicant must apply for a Purple Registration Certificate using Form CR3. The applicant can apply for this from overseas if he or she has not yet arrived in the UK. There is a fee of £55. The applicant must not begin employment in the UK until the Registration Certificate has been received because the penalties for non-compliance are severe: up to 3 months' imprisonment or a £1000 fine.
New Electronic Visa Waiver Scheme for Middle Eastern Business Travelers
The Home Office recently proposed changes to the Immigration Rules to provide a new, straightforward, and free alternative to a visa for short-term visitors from Oman, Qatar, and the United Arab Emirates. The intention is to extend the program to Kuwait later in 2014. These countries are currently visa nationals for the UK, which means that until now they have been required to apply for visas to enter the UK as visitors.
As of January 1, 2014, a passport holder from these countries can travel to the UK visa-free if he or she has obtained an electronic visa waiver (EVW) document online at least 48 hours in advance of travel to the UK and presents the document to an Immigration Officer upon request on arrival. A simple online form needs to be completed for which there is no fee and no requirement to give biometrics or attend a visa application center. Full guidance will be provided on the Home Office website. Some visitors may still prefer a long-term multi-entry visit visa and the facility to obtain these visas will remain. This change is expected to ease business travel for these passport holders and make the UK a more attractive destination for business travelers.
The concept is similar to the Visa Waiver Program available for certain nationalities traveling to the United States, although a fee is charged for the U.S. program.
Launch of New ePassport Gates at Gatwick
On December 4, 2013, the Home Office unveiled new, state-of-the-art machines at London's Gatwick airport that allow passengers with electronic chips in their passports to pass quickly and efficiently through immigration control.
This is one of the measures the Home Office is focusing on to improve services at the border. Another service is the Registered Travellers Scheme, which is being piloted at both Gatwick and Heathrow airports until March 31, 2014. If the pilot proves successful, Registered Travellers qualifying to take part will benefit from faster processing at the border as they will not need to be processed through the normal passport desks. There will be a dedicated lane for Registered Travellers.
Registered Travellers with a compatible biometric-chipped passport will be able to use the electronic passport gates at Gatwick. There will be an annual membership charge and a fee for registering new passports and using this service. (See eligibility and criteria.)
This scheme is only open to visitors who previously registered under the IRIS scheme during the pilot. As part of its consultation on fees and charging, however, the Home Office is considering extending this type of premium service to other visa categories, including limited leave to remain.
New Visa4 UK Website
The Home Office recently launched a new Visa4 UK website. Applicants must register for an account before applying for entry clearance to the UK. The format has changed and a number of additional questions have been added. For those applying under Tier 2, a CoS number is now requested, as well as details of the proposed employment in the UK. There have been some problems with this form that the Home Office is seeking to fix.
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|8. New Publications and Items of Interest|
Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, released by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide "first-rate" and said the key strong point of the book is its "outstanding usability." She said she highly recommends the book and notes that it "is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.
Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes "the fact that the [guide] focuses not just on each country's immigration law itself but also addresses related matters such as tax and social security issues." She noted that the India chapter "is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.'
This comprehensive guide is designed to be used by:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
This publication provides:
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL's attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.
Order HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or Nicole.email@example.com.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available on the ABIL Blog.
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|9. Member News|
Below is a list of ABIL Global members who contributed to Thomson Reuters' Immigration Law – Jurisdictional Comparisons, First Edition 2013, published in November:
Several ABIL Global members will speak at "Business Travel and Short-Term Mobility: International Legal Trends, A Joint AIJA/UIA Seminar," to be held April 24-26, 2014, in Toronto, Canada:
Many ABIL Global memebrs will speak at the Law Council of Australia's Annual Continuing Professional Development (CPD) Immigration Law Conference, to be held in Sydney on March 14-15, 2014. Enrique Arellano will present on on immigrant entrepreneurs. Eugene Chow will be on a panel on recent developments in Australia's investor visas in comparison with similar programs in other parts of the world. The panelists will offer insights into experiences of leaders in the field, with an objective of providing a broader view of recent trends in the movements of investors/entrepreneurs. Laura Devine will speak on a panel on globalization, free trade, employment, and skilled migration.
ABIL members presented at the American Immigration Lawyers Association's Mid-Year Conference in Grand Cayman on January 24, 2014.
- Charles Kuck spoke on Strategies for E-1 and E-2 Investors.
- Robert Loughran co-wrote a chapter and was a discussion leader on "Establishing New Office Intracompany Transfer Ls and the Path to Permanent Residency".
Fakhoury Law Group has worked closely with the Michigan Governor’s Office of Strategic Planning in its development of a proposal on investor visa options as a viable strategy to help revitalize Detroit's ailing economy. Under Michigan Governor Rick Snyder's proposal, over a period of five years, 50,000 additional visas would be designated for the city of Detroit as a pathway for entrepreneurial immigrants willing to invest, live, and work in Detroit for at least five years. "Michigan needs to use every tool in its armory to attack today's problems and immigration is a critical asset to the State as it moves forward in the 21st century. Fakhoury Law Group is proud to lend our expertise to this innovative and important initiative," said Rami Fakhoury, Managing Director of Fakhoury Law Group.
Avi Gomberg will speak on a panel, "Non-Spousal Applications in the Family Class," at the Annual Canadian Bar Association's Immigration Section Conference in Calgary on May 8-10, 2014.
Mark Ivener recently provided EB-5 immigration advice on due diligence. VIDEO
H. Ronald Klasko recently spoke on "EB-5, Where Are We Now?" at the annual meeting of the Mexico City Chapter of the American Immigration Lawyers Association in Bogota, Colombia. Mr. Klasko gave a legislative update on the EB-5 program and reviewed documenting lawful sources of funding for Latin America, developments in adjudications, and "musts" when dealing with regional centers.
Jelle Kroes wrote an opinion article on legislative proposals cutting subsidized legal aid in several immigration litigation categories, measures surrounded by much political controversy. It appeared in several national Dutch newspapers in November 2013, including Het Parool. "Vreemdeling Zal Rechtshulp Kwijtraken" (in Dutch)
Mr. Kroes will present on European Union residence and citizenship programs at the American Immigration Lawyers Association's Rome District Chapter 2014 Spring meeting, to be held at the Grande Bretange Hotel in Athens, Greece, on March 12-14, 2014. Also speaking will be Gunther Mävers, Marco Mazzeschi, Karl Waheed, and Bernard Wolfsdorf.
Kroes Advocaten has become a partner of the Holland Expatcenter South, an expedited visa and permit facility in Eindhoven, the heart of the technology hub in the province of Noord-Brabant.
Charles Kuck was named the 2013 Friend of Hispanics by Mundo Hispanico.
Robert Loughran was quoted on January 9, 2014, by the Houston Chronicle on the impact of a December 31, 2013, federal court decision clarifying that neither probable cause nor reasonable suspicion was required for U.S. border agents to seize, inspect, and copy smartphones, laptops, tablets, or any other form of electronic device in the possession of an arriving traveler, including a U.S. citizen.
Cyrus Mehta has authored or co-authored several new blog entries. "GOP Principles on Immigration—A Path to Legal Status" "Top Ten Posts on the Insightful Immigration Blog in 2013" "One Step Forward, Two Steps Backwards: Immigration Benefits for Same Sex and Domestic Partners in India" "I Pledge Allegiance: The Naturalization Oath and Dual Citizenship" "Free the Children: Parent's Abandonment of Green Card Should Not Be Imputed on Child"
Angelo Paparelli was quoted in a New York Times editorial on February 5, 2014, about Governor Rick Snyder of Michigan's proposal to attract 50,000 people with advanced degrees or exceptional abilities in the sciences, arts, or business to Detroit to help revive the depressed economy there. Mr. Paparelli, who grew up in Detroit, suggested that states could submit economic revival proposals to vie for a larger share of work-related visas for foreign investors and entrepreneurs.
Mr. Paparelli has authored or co-authored several new blog entries. "Why Are Immigration Lawyers So Happy?" "Immigration Voices: Egads! I-9 Questions That Keep Me Up at Night" "Half a Loaf Immigration Reform" "Tips from an Immigration Insider: How to Excel at a U.S. Visa Interview" "Immigration Triangulation—Another Dysfunctional Government Policy" "Immigration Dreaming in California—Assembly Bill 263 Will Bring Nightmares to the State's Employers"
Mr. Paparelli has announced the 2013 Nation of Immigrator ("IMMI") awards.
Julie Pearl will co-moderate a roundtable discussion on international business traveler compliance at a global mobility seminar in Mountain View, California, on January 31, 2014. More information or to register.
Ms. Pearl won a Stevie award in the category of "Woman of the Year – Business Services."
Pearl Law Group was ranked by the San Francisco Business Times among the "Fastest Growing Private Companies" and the "Top 100 Fastest Growing Women Owned Companies."
Stephen Yale-Loehr was quoted in several Gannett newspaper articles on House of Representatives Speaker John Boehner's expected upcoming efforts to move immigration reform forward. Mr. Yale-Loehr noted that immigration legislation is a "minefield" for Mr. Boehner. On one side, immigration reform could be a way to win over Hispanic voters, Mr. Yale-Loehr observed. On the other side, House conservatives and Tea Party members could fight against such an effort. One of the newspapers in which the article appeared is HERE.
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